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7/26/2019 Boston & Maine v. Brotherhood, 1st Cir. (1996)
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USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-2344
BOSTON AND MAINE CORPORATION,
Plaintiff - Appellant,
v.
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES,
Defendant - Appellee.
____________________
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
___________
Cummings* and Cyr, Circuit Judges.
______________
_____________________
David A. Handzo, with whom Daniel F. Driscoll, S
_________________ ____________________ _
Elliott, Smith and Garmey, John H. Broadley, Andrew J. McLau
_________________________ ________________ _______________
and Jenner & Block were on brief for appellant.
______________
Richard S. Edelman, with whom John O'B. Clarke, Jr., Do
__________________ ______________________ _
F. Griffin, Melissa B. Kirgis and Highsaw, Mahoney & Clarke,__________ _________________ __________________________
were on brief for appellee.
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____________________
August 30, 1996
____________________
____________________
* Of the Seventh Circuit, sitting by designation.
TORRUELLA, Chief Judge. Plaintiff-Appellant Bosto
TORRUELLA, Chief Judge.
___________
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Maine Corporation (the "B&M") challenges the district cou
denial of its motion for summary judgment and concurrent gran
summary judgment for Defendant-Appellee Brotherhood
Maintenance of Way Employees (the "BMWE"). The B&M
challenged the enforcement of certain of Public Law Board 44
awards to the BMWE-affiliated claimants. The BMWE so
enforcement of the same awards, which the district court gran
We affirm the judgment of the district court.
BACKGROUND
BACKGROUND
__________
In March 1986, the BMWE-member employees exerc
their right to self-help in a dispute with two carriers,
Maine Central Railroad Company (the "MEC") and the Port
Terminal (the "PT"). The MEC's and the PT's BMWE-represe
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employees asked the employees of the B&M to withhold their l
from the B&M to assist them in resolving their dispute. In
1986, the B&M issued notices that jobs left vacant by sympat
strikers would be permanently abolished, including the jobs
vacant by the claimants. On April 19, 1986, the B&M directe
striking employees to return to work by April 25, 1986, or t
positions would be filled by permanent replacements.
claimants did not return to work that April.
When the BMWE's strike against the MEC was halte
May 16, 1986, the claimants attempted to return to work.
they tried to return to work, they were informed that they
not entitled to return to work because they had forfeited t
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seniority by not complying with Rule 13 of the collec
bargaining agreement ("the CBA"), which required
"[e]mployees laid off by reason of force reduction, desirin
retain their seniority rights, must, within ten (10) days
[the] date laid off, file their name and address, in writin
triplicate, with their immediate supervising officer."
claimants were not permitted to return to work until some
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after July 23, 1986, when, by memorandum, the B&M restored t
seniority in compliance with a permanent injunction grante
the district court in Railway Labor Executives' Ass'n v. Guil
_______________________________ ___
Transp. Indus., 639 F. Supp. 1092 (D. Me.), aff'd in part
______________ _____________
rev'd in part sub nom., Railway Labor Executives' Assoc.
_________________________ _________________________________
Boston & Me. Corp., 808 F.2d 150, 160 (1st Cir. 1986), c
___________________
denied, 484 U.S. 830 (1987). Although this court vacated
______
injunction against The B&M, holding that the dispute invol
the BMWE employees was one pertaining to the interpretation
application of the CBA and was thus within the exclu
jurisdiction of the appropriate adjustment boards to reso
However, at no time after this court vacated the injunction
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the B&M rescind its July 23, 1986, memorandum restoring
claimants' seniority.
In accordance with the mandate of this court,
district court entered an order referring the contrac
disputes concerning the B&M to "the National Railroad Adjust
Board or Public Law Board, whichever is applicable."
result, on February 13, 1989, the BMWE and the B&M entered
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an agreement to establish a Public Law Board pursuant to Sec
3 Second of the Railway Labor Act (the "RLA"), 45 U.S.C.
Second, to hear the 175 disputes at issue. In March 1989,
National Mediation Board (the "NMB") established Public Law B
4669 to hear the disputes and appointed Edwin H. Benn fro
Board. On May 10, 1993, Referee Benn resigned as the neu
member of Public Law Board 4669. The BMWE and the B&M part
members on the Board agreed to select Elizabeth C. Wesman as
neutral member to replace Referee Benn, and on August 3, 1
she was duly appointed by the NMB.
With Wesman as the neutral member, Public Law B
4669 heard five cases (Nos. 6, 7, 9, 10 and 11) and subseque
Wesman issued proposed awards in each of the five cases. Pu
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Law Board sustained, in part, the claims in Awards 6, 7, 9 an
-- with the B&M partisan member dissenting -- finding that
claimants had been erroneously deprived of their seniority by
B&M's actions. These four awards ordered the B&M to compen
the claimants in those cases with
back pay for wages [each claimant] . . .
would have earned, but for the erroneous
___ ___
removal of his seniority on May 19,
1986[,] for the interval between that
date and the date of his assumption of
the position to which he was properly
entitled, following restoration of his
seniority on July 23, 1986. [Claimants
are] . . . also entitled to restoration
of any vacation rights [they] . . . may
have lost as a consequence of the
erroneous removal of [their] . . .
seniority.
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-4-
The B&M has refused to pay the back pay ordered by the
awards (Nos. 6, 7, 9, and 10) of Public Law Board 4669. Inst
the B&M filed a motion for summary judgment with the dist
court seeking to have the awards set aside; in response, the
filed a motion for summary judgment seeking to enforce t
awards. The B&M now appeals the district court's denial of
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motion, as well as the district court's decision to grant
BMWE's motion. Like the district court before us, we refe
Award No. 6 only, since it is the lead decision in this mat
the reasoning of which is incorporated in Awards Nos. 7, 9
10.
STANDARD OF REVIEW
STANDARD OF REVIEW
__________________
We examine a grant of summary judgment de n
____
applying the same decisional standards as the district co
Wyner v. North Am. Specialty Ins. Co., 78 F.3d 752, 754 (1st
_____ ____________________________
1996). As such, we must apply the normal standard by
courts review arbitration decisions pursuant to the RLA.
Trial v. Atchison, Topeka & Santa Fe Ry., 896 F.2d 120, 123
_____ ________________________________
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Cir. 1990).
"Judicial review of an arbitration award is amon
narrowest known in the law." Maine Cent. R. Co. v. Brother
__________________ ______
of Maintenance of Way Employees, 873 F.2d 425, 428 (1st
_________________________________
1989). Under the RLA, an award by a Public Law Board can be
aside only if: (1) the Board failed to comply with
requirements of the RLA; (2) the Board exceeded its jurisdict
or (3) the award was the product of fraud or corruption.
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U.S.C. 153 First (q). While the limited scope of judi
review "is not the equivalent to granting limitless power to
arbitrator," Georgia-Pacific Corp. v. Local 27, Un
_______________________ _______________
Paperworkers Intern. Co., 864 F.2d 940, 944 (1st Cir. 1989),
_________________________
a general proposition, an arbitrator's factual findings are
open to judicial challenge," El Dorado Tech. Servs. v.
________________________
General de Trabajadores de Puerto Rico, 961 F.2d 317, 320
________________________________________
Cir. 1992). Where, as here, issues of fraud or corruption
not raised, we ask "whether the arbitrators did the job they
told to do -- not whether they did it well, correctly,
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reasonably, but simply whether they did it." Brotherhoo
__________
Locomotive Eng'rs v. Atchison, Topeka and Santa Fe Ry. Co.,
_________________ _______________________________________
F.2d 914, 921 (7th Cir. 1985).
DISCUSSION
DISCUSSION
__________
In her revised Award, ultimately adopted by the Bo
Referee Wesman concluded that because the First Circuit, in
December 22, 1986, decision, reversed the part of the dist
court's order that restored the seniority of the affe
employees, but the B&M failed to retract its July 23, 1
memorandum restoring such seniority, the issue of whe
claimants were deprived of their seniority was "moot." Pu
Law Board No. 4699, Award No. 6, p. 10. The district c
ordered the enforcement of Award No. 6 because it concluded
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"the decision that it is not necessary to interpret the cont
is a decision which is entitled to the same level of deferenc
a finding of contractual meaning." Boston & Maine Corp
____________________
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Brotherhood of Maintenance of Way Employees, No. 94-321-
_______________________________________________
slip. op. at 14 (D. Me. 1995). The district court so concl
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because it read the Award as "a legal decision based on fac
determinations" to which "[c]ourts are bound to defer .
unless the arbitrator has manifestly disregarded the law."
at 15. The district court found no such manifest disregard.
On appeal, the B&M contends that, because the
directs that the role of a public law board is to interpre
apply the provisions of a collective bargaining agreement,
because the instant parties' agreement did not expand the Boa
jurisdiction beyond that set by the RLA, by failing to inter
and apply the CBA in making her decision the Board exceede
authority. The B&M buttresses this argument by claiming that
arbitrator's failure to interpret or apply the CBA violated
court's prior conclusion that the disputes in question requ
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the interpretation or application of the CBA. See Railway L
___ ________
Executives' Ass'n v. Boston and Maine Corp., 808 F.2d 150,
__________________ _______________________
(1st Cir. 1986), cert. denied, 484 U.S. 830 (1987).1
____________
____________________
1 We also reject the B&M's contention that the district c
made a finding of fact that the arbitrator failed to interpre
apply the CBA. In review of RLA arbitration, the fac
findings of the arbitral panel are "conclusive" upon the dist
court. 45 U.S.C. 153 First(q). Thus, the district court
not obligated to make findings of fact for the purposes
Federal Rule of Civil Procedure 52(a), see Makuc v. Amer
___ _____ ___
Honda Motor Co., 835 F.2d 389, 394 (1st Cir. 1987), and in _______________
the district court properly noted that it lacked jurisdictio
review the factual findings of the panel, Boston & Maine Corp
__________________
Brotherood of Maintenance of Way Employees, No. 94-321-P-C,
___________________________________________
op. at 17 (D. Me. November 9, 1995).
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-7-
As an initial matter we reject the contention that
previous opinion directed that the Board construe the CBA.
B&M points to a statement in our previous opinion that "[w]he
a party is in breach of a collective bargaining agreement .
'requires the interpretation [and] application'" of
agreement. Railway Executives' Assoc., 808 F.2d at 159 (quo
__________________________
45 U.S.C. 153, First (1) (RLA)). However, there, we
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responding to the district court's exercise of jurisdiction
an arbitrable "minor" dispute, which was not first liti
before an appropriate arbitration board -- as the RLA dire
See 45 U.S.C. 153, First (providing that arbitration
___
disputes over contract interpretation is compulsory). See, e
___
Andrews v. Louisville R.R. Co., 406 U.S. 320, 323 (1972).
_______ ____________________
statement regarding "interpretation" and "application" of the
is best read as distinguishing the job of an arbitration b
under the RLA from the district court's proper exercise of
jurisdiction. In that light, our previous language cannot
construed as limiting the Board to interpreting the contr
rather than exercising the full authority afforded it by
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parties.
We turn to the question of the proper scope of
arbitrator's authority. The B&M asks us to adopt the view
the Board's sole authority was to apply and interpret
provisions of the CBA that the parties brought before it,
that by dismissing the issue brought before it as moot, the B
exceeded that authority. We cannot accept such a restric
-8-
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reading of the scope of arbitration in this case. We have st
before that "once an issue has been committed to arbitrat
both the CBA and the submission itself should be taken
account in determining the scope of the submission." El Do
____
Tech. Servs., 961 F.2d at 320. In El Dorado Technical Servi
____________ ________________________
an employer argued that an arbitrator exceeded the scope of
authority by taking into account provisions other than
particular provision under which the union complained. Id.
___
response, we concluded that "[a]n arbitrator's view of the s
of the issue committed to his [or her] care is entitled to
same far-reaching respect and deference as is normally acco
to the arbitrator's interpretation of the collective bargai
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agreement itself." Id. at 321. As a result, we rejecte
___
"bordering on the chimerical" the view that an arbitrator c
exceed the scope of his authority by electing to consider
agreement in question as a whole. Id. We do so again here.
___
Similarly, B&M claims that the arbitrator faile
interpret the CBA in this case, in particular the CBA's Rul
governing the retention of seniority rights during furlough.
Board concluded that because B&M had restored these ri
pursuant to the district court's ruling in 1986, and di
retract this restoration pursuant to the First Circuit's
reversal, the issue of whether the B&M properly termin
employees' seniority is "moot." While the instant case dif
from El Dorado Technical Services in that there the arbitrat
____________________________
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ruling was challenged on appeal for considering provisions of
-9-
CBA that were not submitted for arbitration for the parties
think that El Dorado Technical Services at the very least dir
____________________________
that the Board's decision not to interpret Rule 13 cannot a
support the conclusion that the Board exceeded the scope of
authority, despite the fact that the parties' submission foc
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on Rule 13. The parties' submission agreement in fact st
that the "Board shall have jurisdiction only of the claims
grievances" shown on an attached list containing the claima
names that included the Rule 13-related issue of seniority.
conclude the Board's mootness ruling is a plaus
interpretation of the "claims and grievances" language in
submission. We defer, per El Dorado, to the Board's conclu
_________
that the "claims" consisted of only the question of remedy, s
____ ______
the B&M essentially conceded the question of liability. Cf.
_________ ___
Concrete, Inc. v. Cunningham, 866 F.2d 283, 285-86 (9th
______________ __________
1989) (deferring to the arbitrator's ruling that submi
"seniority and recall" issue also allowed consideration
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propriety of discharge").
What we are left with, then, is the question of whe
an arbitrator's decision that the existing record does
present a justiciable controversy, in and of itself, overs
the arbitrator's authority pursuant to the RLA. We conclude
the Board cannot seriously be considered to have oversteppe
bounds, where, as here, the arbitrator's decision was grounde
B&M's allowance via its memorandum -- prior to arbitration -
the remedy sought by employees. The Supreme Court has clari
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that arbitration boards under the RLA are not restricted si
to the interpretation of the agreement set before t
Transportation-Communication Emp. Union v. Union Pac. R. Co.,
_______________________________________ _________________
U.S. 157, 165-66 (1966). In fact, the Supreme Court has or
arbitration boards "to resolve th[e] entire dispute not only
the contract between the railroad and [employees], but 'in l
of . . . [contracts] between the railroad' and any other u
'involved' in the overall dispute, and upon consideration
'evidence as to usage, practice and custom' pertinent to
these agreements." Id. (quoting Order of Ry. Conductor
___ _______________________
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Pitney, 326 U.S. 561, 567 (1946)); see also International Bh
______ ________ ________________
Teamsters v. Pan Am World Servs., Inc., 675 F. Supp. 1319,
_________ __________________________
(M.D. Fla. 1987). In the instant case, the Board's decision
certainly made in light of the CBA, upon consideration of
current practice among B&M and the employees involved perti
to the CBA. Specifically, because B&M had continue to affor
employees their "disputed" seniority while being free not t
so, the Board found moot the issue of whether the complai
employees could have complied with Rule 13 of the CBA, purs
to which they lost their seniority.
It is well settled that a case is moot "when the is
presented are no longer 'live' or the parties lack a le
cognizable interest in the outcome," United States Parole Co
______________________
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v. Geraghty, 445 U.S. 388, 396 (1980) (quoting Powell
________ _____
McCormack, 395 U.S. 486, 495-96 (1969)), or alternatively,
_________
the "party invoking federal court jurisdiction" no longer ha
-11-
personal stake in the outcome of the controversy." Geraghty,
________
U.S. at 397. An exception to the mootness doctrine exists
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it appears that all issues in a case have been resolved, but
issues are "capable of repetition, yet evading review." Sout
___
Pac. Terminal Co. v. ICC, 219 U.S. 498 (1911). One might dis
_________________ ___
whether the Board was correct as a legal matter in
determination that the matter in question was moot. However,
us to assess the merits of that determination would excee
own role in reviewing an arbitrator's decision. We
constrained to ask only whether the Board's members "did the
they were told to do." Brotherhood of Locomotive Eng'rs,
_________________________________
F.2d at 921. That job was to resolve the dispute "in light
the CBA and the relevant practice between the B&M and
complaining employees. The Board certainly did this job,
manner that cannot even be characterized as arbitrary
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capricious -- a standard which would still not be adequa
deferential to the Board's decision. See Loveless v. Eas
___ ________ __
Airlines, 681 F.2d 1272, 1276 (11th Cir. 1982) (noting that
________
Senate Labor Committee rejected language that would
permitted courts to vacate arbitral awards under the RL
"arbitrary or capricious"). Our inquiry ends there.
CONCLUSION
CONCLUSION
__________
As a result of the foregoing, the judgment of
district court is affirmed.
affirmed. ________
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